Twohill, Gardiner, Gehling, Carbone v Reg

[1998] HCATrans 460

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A14 of 1998

B e t w e e n -

GEORGE TWOHILL

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Adelaide  No A15 of 1998

B e t w e e n -

WAYNE DOUGLAS GARDINER

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Adelaide  No A16 of 1998

B e t w e e n -

BRUCE DOUGLAS GEHLING

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Adelaide  No A20 of 1998

B e t w e e n -

FRANCESCO CARBONE

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 1998, AT 2.39 PM

Copyright in the High Court of Australia

___________________

MR T.A. GRAY, QC:   May it please the Court, I appear with my learned friend, MS E.M. HOLMES, for the applicants, Gardiner  (instructed by McGee) and Carbone (instructed by Antonio Tropeano)

MR D.H. PEEK:   May it please the Court, I appear for the applicants, Twohill  (instructed by Bill Morris & Associates) and Gehling, (instructed by Harrap & Stokes)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia:   May it please the Court, I appear with my learned friend, MS S. McDONALD, in all matters.  (instructed by the Director of Public Prosecutions (South Australia)

GUMMOW J:   Is there any division of labour between you and Mr Peek, Mr Gray?

MR GRAY:   Yes, I think I would have the primary task, if the Court pleases.

CALLINAN J:   There is no difference, is there, in any material respect?

MR GRAY:   No, there is not.

GUMMOW J:   So we are correct in starting on the footing that Mr Peek will be adopting your submissions?

MR GRAY:   I understand so, if the Court pleases.

GUMMOW J:   Very well.

MR GRAY:   If the Court pleases, there are four matters that set the basis for both special leave points.  The first is that the judge at first instance, Justice Nyland, found there to be a conspiracy between the police and a civilian, Mr Renko, and the

conspiracy was an agreement to tell lies about the circumstances surrounding the seizure of the documents.
           The second aspect of the matter is that the police and the civilian, Mr Renko, then proceeded to tell lies on oath before her Honour, in particular, in a way that precluded her Honour from making full findings about the circumstances of the seizure of the relevant documents and then the court was able, however, to make some limited findings on the probabilities on this voir dire hearing.

GUMMOW J:   Well, let me come to the point that is on my mind.  The text of the questions and the text of the answers appears, as to one of them at 98, that is the answer to question one, and the answer to question two appears at 110.  Of necessity they are expressed in somewhat general terms.

MR GRAY:   Yes.

GUMMOW J:   It does not look like a well-composed matter to come here.

MR GRAY:   If the Court pleases, the questions were composed ‑ ‑ ‑

GUMMOW J:   What would we do, give a different answer to the examination question?

MR GRAY:   Yes, it might be a question of how the special leave questions are defined but, if the Court pleases, in regard to what I might call the second of the points at pages 107, 110, the legal professional privilege point and the warrant point, what the court has found if the Court goes to foot of 107, it is perhaps the clearest passage.  It is the last paragraph on 107, the judgment of the Chief Justice:

It follows, in my respectful opinion, that there is no principle that powers under a general search warrant are exercised unlawfully and ineffectively merely because they are not exercised reasonably.

It is acknowledged that that is in conflict with the Full Federal Court decision in Citibank and we might say in conflict with the approval of those remarks in Citibank by this Court in a case of Jacobsen.  So, at that level, if the Court pleases, there is a very clear and succinct proposition on which we would seek special leave and that is in a narrower format than perhaps the question posed by the Crown or answered by the court below.             We would say that on that point there is a clear division as recognised and as acknowledged between the intermediate Courts of Appeal.  It is a very important point and, with respect, needs to be clarified.

GUMMOW J:   Yes, best to deal with it with a real factual substratum.

MR GRAY:   Yes.  Well, if the Court pleases, one of the difficulties in this matter is that given the conspiracy to tell the lies and the lies being told, there is going to be, inevitably in this case, a difficulty to find out the facts because the very people who could give the evidence are the police and Mr Renko and they have all been found to have been lying on oath.

CALLINAN J:   It would be very powerful cross‑examination material in a trial.

MR GRAY:   Yes, it would be, if the Court pleases.  But what has happened here is that, and it was common ground below, the exclusion of this material would be the end of the trial.  Those findings are in the appeal book at 85 and 86 and they are quite explicit.

GUMMOW J:   Well, if that proves to be the fact, there it is.  Why not wait until then?

MR GRAY:   At the moment, the matter will come back before her Honour, the trial judge, and she will have to consider what she has ‑ ‑ ‑

GUMMOW J:   Something else may turn up.

MR GRAY:   Yes.Well, there has been no suggestion, we would say, of something else turning up.  In particular, what we do have, and this unusual feature of this case, is a concession that if this ruling stands and this evidence is not received, that is the end of the case and we say that that, of itself, gives, we would say, a sufficient focus to allow this Court to entertain the matter.

In essence, on that point, that is our proposition to the Court but we do have a sufficient finding of fact, we do have these files.  They are voluminous in number, they are from essentially the clients of solicitors, insurance companies ‑ ‑ ‑

GUMMOW J:   Looks a little bit like Elliott v The Queen 185 CLR 250.

MR GRAY:   Yes, we do understand the Court’s reluctance on an interlocutory matter.  As the Court has seen in our reply, we would draw the distinction between a voir dire hearing and an interlocutory matter.  We say there is a distinction.  We recognise the Court would need to be satisfied that there would be some real point and some real merit in selling the point now.  If we are successful, if the Court pleases, if the Court finds that the Citibank decision is correct and that her Honour’s approach was correct, then that is the end of the trial.

Now, in that circumstance, we would urge the Court to view this matter on the voir dire as being not an inappropriate vehicle.  If the Court pleases, it does appear that the Court of Criminal Appeal was not referred to the High Court’s remarks in Jacobsen and we have set those out in our short reply.

GUMMOW J:   Yes, that is right.

MR GRAY:   In particular, the very passages ‑ ‑ ‑

GUMMOW J:   Did you appear in the Full Court?

MR GRAY:   No, I did not, if the Court pleases.  The very passages of Citibank that Chief Justice Doyle criticises and finds as a matter of policy are unhelpful are the precise passages approved by five members of this Court in the Jacobsen case so we would say that in terms of identifying what is an important point, we have done that.

In terms of identifying a difference of view between courts below, we have done that, and at a senior appellate level and a matter that, certainly as far as South Australia is concerned, requires clarification because we are dealing with matters of warrants and matters that can arise on a daily basis, so we would urge the Court to, although this be in a sense for a voir dire and in that sense…..interlocutory, to find in this case it is an appropriate vehicle.

The Court would have, with respect, quite a contained appeal book.  The matter would be essentially argued from the findings of Justice Nyland which were not treated as being challengeable by the Court of Appeal so effectively, the point would be argued out - put before the Court and the Court would then be taken to the direct conflict between Citibank and this decision and, with respect, invited to make a ruling as to what is the correct position.

The end result of the Court of Criminal Appeal’s ruling in South Australia is that unreasonableness in the execution of the warrant is not a matter that touches the lawfulness of the warrant or the status of the material seized so that is the first special leave point.

GUMMOW J:   Yes.

MR GRAY:   If I could move to the second.

GUMMOW J:   Yes.

MR GRAY:   The second, if the Court pleases, deals with the extent of the discretion, the public policy discretion and to Bunning v Cross, to exclude evidence as a matter of public policy discretion.

GUMMOW J:   This is question one, is it?

MR GRAY:   It is question one and we had identified it as question two in the special leave application.

GUMMOW J:   Yes.

MR GRAY:   Now, if the Court pleases, what has happened there, and, in particular, it is identified at page 96, is the Court of Criminal Appeal had put, we would say, an unreasonable fetter on that discretion.  It is at line 24 on page 96 of the appeal book when Chief Justice Doyle says:

As I have already said, it is when the illegality or impropriety is the means by which the evidence is procured that the discretion arises for consideration.

Now, if the Court pleases, we say that that is too narrow.  The facts here are that the impropriety, the misconduct includes a conspiracy and it is because of the telling of lies that the court cannot get to the bottom of what happened at the time of seizure fully and we would say that in a case where the police have lied on oath, as found by her Honour, to mislead the court to avoid the court finding out about the circumstances of seizure, as is clear, that in those circumstances, the Bunning v Cross discretion is enlivened and to say that no discretion exists in those circumstances, we would say, is to place too narrow a fetter on the discretion.

In fact, the step taken of deliberately stopping the court getting to the truth compounds the problem, it does not ameliorate it.  It is a more serious case.  If, in fact, the police had come forward and said, “Yes, this is what happened.  Yes, there was an irregularity but in your discretion the evidence should go in”, the court would at least have the openness and would see then that the matter be exposed but to make the matter covert and to hide behind lies on oath, we would say, is to take a curial advantage in a very unfair way.  When one is looking at the Bunning v Cross discretion, on the one hand, one puts into the scales the unfair taking of a curial advantage and that is what has happened here.

CALLINAN J:   You are talking now about the conduct after what you say is the illegality in the execution of the warrant, lying about the circumstances.  Is that right?

MR GRAY:   Yes, in part, if the Court pleases, but her Honour was unable to make a finding about ‑ ‑ ‑

CALLINAN J:   I understand that, but one of the problems about that proposition is that it may be a little difficult to distinguish it from circumstances in which prosecution witnesses lie about other central matters or, indeed, about central matters – this may not be, but lie about central matters during the course of the trial and that, as a matter of law, is not a reason to exclude evidence or to exclude evidence and then pass conduct.  It is essentially a jury question, what the jury believes.

MR GRAY:   Yes, the difference between the case of simply a police lie about a matter ‑ ‑ ‑

CALLINAN J:   Or a lie about a conspiracy, a conspiratorial lie by more than one person.

MR GRAY:   Yes, but here this point arose on the issue of the tender of material and obviously critical material to the case.

CALLINAN J:   I know, but there could be material tendered that involved lying which had nothing to do with the production of other evidence.  It is a little difficult to distinguish, I think.

MR GRAY:   We would say, if the Court pleases, that the distinction between the two is the establishing of a nexus in regard to the material to be tendered and we say that to simply say that a conspiracy to tell lies so that the court cannot get to the truth in regard to the tender of material is a sufficient nexus to enliven the Bunning v Cross discretion.  How to exercise it is another matter but to suggest there is no discretion as the CCA have suggested is inappropriate and represents a fetter on the Bunning v Cross discretion.

Now, if the Court pleases, they are the two points that we make.  The Court is obviously seized of them.  My learned friend, Mr Selway, in his submission has put before this Court or the Crown puts before this Court an utterly different position than below.  Below, although the point was, in his terms, interlocutory, the Crown argued that the trial should be disrupted because there are important points of principle to be decided that warranted that and, in particular, the evidence was crucial to their case.  Now, in this Court, the Crown take an utterly different position.  It is no longer important

publicly to decide it now and all of a sudden the interlocutory nature becomes paramount.  Now that inconsistent approach by the Crown, with respect, we would say, cannot have weight.  May it please the Court.

GUMMOW J:   Yes, thank you, Mr Gray.  There is no need to call on you, Mr Selway.

MR SELWAY:   May it please the Court.

GUMMOW J:   There is no need to call on you, Mr Selway.

MR SELWAY:   If it please the Court.

GUMMOW J:   In refusing special leave in Elliott v The Queen (1996) 185 CLR 250, this Court emphasised the undesirable consequences of fragmentation of the criminal process by interlocutory appeals. Further, the general terms in which the questions here were framed and answered by the Court of Criminal Appeal of South Australia makes this an undesirable vehicle for a grant of special leave.

Special leave will be refused.  However, in doing so, we express no view as to the correctness or otherwise of the propositions of law in the judgment of Chief Justice Doyle in the Court of Criminal Appeal. 

That will apply to matter of Twohill v The Queen, and I think it inevitably follows in the other three applications.

In saying what we have said, Mr Peek, we have assumed you adopted Mr Gray’s submissions.

MR PEEK:   Yes, that is so, your Honour.

GUMMOW J:   Yes.  So, special leave in each of those applications is refused.  We will adjourn in order to reconstitute.

AT 2.54 PM THE MATTERS WERE CONCLUDED